Legal Systems In The World

There are various definitions of the term "legal system". A legal system is the
framework of rules and institutions within a nation regulating individual's relations with
one another and between them and the government. In this world, there are many
types of legal systems, but the few major legal systems of the world today are civil
law, common law, customary law, religious law and mixed law systems.

CIVIL LAW

Civil law is the dominant legal tradition today in most of Europe, all of Central and
South America, parts of Asia and Africa, and even some discrete areas of the common-
law world, like Louisiana and Quebec. The origin of civil law is from the Roman law.
The civil law is a set out of comprehensive system of rules which are applied and
interpreted by judges. Besides that, civil law is older, more widely distributed and in
many ways more influential than the common law.

COMMON LAW

Common law is a system of law that is derived from judges' decisions, rather than
statutes or constitutions. It is based on tradition, past practices and legal precedents
set by courts through interpretation of statues, legal legislation, and past rulings.It is
English in origin and is found in United States and other countries with strong English
influences.

CUSTOMARY LAW

Customary law is a traditional common rule or practice that has become an intrinsic
part of the accepted and expected conduct in a community, profession, or trade and is
treated as a legal requirement. Not many countries in the world today will operate
under a legal system which could be wholly customary. However, customary law still
plays a sometimes significant role, like in the matters of personal conduct, in many
countries or political entities with mixed legal systems.

ISLAMIC LAW
Islamic law is derived from the interpretation of the Al-Quran. Its primary objective is
social justice, but also includes property rights, economic decision making, and types
of economic freedom. Islamic law is mostly found in Pakistan, Iran, and other Islamic
states.

A mixed legal system is a mixture of two or more legal system practised by some
countries.

Common Law

Common law is a legal system that gives great weight to precedents (legal principles
or rules decided by a judge that may apply to subsequent cases of similar issues or
facts). Due to its feature being a body of precedents that bind on future decisions,
common law is also known as case law. 

History

Most legal history textbooks relate the emergence of the English Common Law system
to the Norman conquest led by William, Duke of Normandy during the Battle of
Hastings in 1066 England. The conquest was an important event in English history, as it
largely removed the native ruling class and replaced it with French-speaking monarchy,
aristocracy and clerical hierarchy. After William was crowned as King of England, he
made several changes to the existing English laws and customs to maintain the
Normans' control over the English lands. The Domesday Book recorded that these
changes subsequently caused the near-total elimination of the old English aristocracy,
the loss of English control over the Catholic church, and only 5% of land in England
managed to stay within the English hands.

Before the Normans arrived, the Anglo-Saxons had a more sophisticated government in
England compared to Normandy. All laws were local and enforced in the manorial,
shire and hundred courts. England used to be divided into many different "shires" -
each shire was administrated by a county court which were run by officials known as
"sheriffs". Written documentation formed a strong feature of the early English legal
system and was made an efficient tool of governance. This sophisticated government
system was further developed by the Normans after the invasion - with introductions to
forest laws; accounting; the usage of Latin replacing Old English as the official
language of documents; and centralisation of the autonomous shire system.

Common law did not begin to take place in England until the reign of Henry II of
England in 1150. During the 12th and 13th century, the king's judges tend to follow
each other's decision in order to create a unified common law throughout England.
Collective judicial decisions were based on traditions, customs and previously accepted
rules or principles.

Henry II developed the practice of sending judges from his own central court to hear
the various disputes throughout the country. His judges, known as General Eyres,
would resolve disputes on an ad hoc basis according to what they interpreted the
customs to be. The king's judges would then return to London and often discuss their
cases and the decisions they made with the other judges. These decisions would be
recorded and filed. The rule of stare decisis thus developed from this practice,
whereby a judge would be bound to follow the rule of an earlier judge.

Features

 Sources of Common Law are derived from precedent, legislation and rules of
equity.
 Common law courts tend to use an adversarial system, in which two sides
present their cases to a neutral judge.

Sources 

1) Precedent / case law 

English Common Law system is largely based on judge-made law. Pronouncement of
decisions made by a judge of a higher court may be binding on other judges of the
correlative or lower courts. The pronouncement must have formed the ratio decidendi
of the case (reasoning behind the decision) and must be a matter pertaining to law
rather than a factual decision. Ratio  decidendi comprises the legal principles and
rules which are necessary to solve the problem before the court, therefore it is
binding. If the pronouncement is obiter dictum (something about the law said in
passing, or "by the way") which contains words strictly unnecessary to solve the
problem before the court, it will not be binding. However, judges may treat obiter
dictum as of "persuasive authority" as they may read and be influenced by them even
though they are not obliged to follow them.

2) Legislation

Legislation is law which has been enacted by a legislature or a governing body (such as
the Parliament). An item of parliamentary legislation which has been converted from a
bill to a statute is known as an Act of Parliament. Comparing legislation with common
law, statutes generally have the power to change the established common law, but the
common law cannot overrule or change statues. A statute can only be overrruled or
amended by another, later statute. Any legislation made by a person or body other
than the legislature but with the legislature's authority is known as delegated
legislation. Delegated legislation is usually made by an executive authority given
power by the primary legislation (the primary legislature or parent Act) in order to
implement and administrate the requirements of that primary legislation through a
statutory instrument or by-law.

3) Equity
Before 1873, England had two parallel court systems: courts of "law" that could only
award money damages, and courts of "equity" that could issue injunctive relief. Equity
is derived from the term "fair" or "without bias". The rules of equity evolved from the
exercise of litigants who were allowed to appeal directly to the King if a judge's
decision was considered unfair, or if changes in certain case law is not quick enough to
solve a problem. People started petitioning the King for relief against unfair judgments
and as the number of petitioners rapidly grew, the King delegated the task of hearing
petitions to the Lord Chancellor. When a litigant wished to claim right on his land or
obtain relief for a civil wrong imposed on him he was entitled to petition for a legal
remedy upon demanding and paying for a writ (a formal written order issued by a
court). However, the writ sometimes produced unjust results as it is limited to
enumerated rights. Even if a perfect writ had been issued, the litigant will have no
case if there is no single form of action combining the claim and the rights affected. As
the law of equity developed, it began to rival and conflict with the common law.
Equity is commonly said to "mitigate the rigor of common law", allowing courts to use
their discretion and apply justice in accordance with natural law.

The maxims of equity were eventually developed by the courts of equity in deciding
cases before them:-

1. Equity regards done what ought to be done

2. Equity will not suffer a wrong to be without a remedy
3. Equity delights in equality
4. One who seeks equity must do equity
5. Equity aids the vigilant, not those who slumber on their rights
6. Equity imputes an intent to fulfill an obligation
7. Equity acts in personam.
8. Equity abhors a forfeiture
9. Equity does not require an idle gesture
10. One who comes into equity must come with clean hands
11. Equity delights to do justice and not by halves
12. Equity will take jurisdiction to avoid a multiplicity of suits
13. Equity follows the law
14. Equity will not aid a volunteer
15. Where equities are equal, the law will prevail
16. Between equal equities the first in order of time shall prevail
17. Equity will not complete an imperfect gift
18. Equity will not allow a statute to be used as a cloak for fraud
19. Equity will not allow a trust to fail for want of a trustee
Present day

The common law constitutes the basis of the legal systems of English-speaking
countries or Commonwealth countries. Essentially, every country that was colonised at
some time by England, Great Britain, or the United Kingdom uses common law except
those that were formerly colonised by other nations, such as Quebec (which follows
the law of France in part), South Africa and Sri Lanka (which follow Roman Dutch law),
where the prior civil law system was retained to respect the civil rights of the local
colonists. India uses common law except in the state of Goa which retains the
Portuguese civil code. Guyana and Saint Lucia have mixed Common Law and Civil Law
systems.

The Malaysian Written Law

The laws of Malaysia can be divided into two types of laws—written law and unwritten
law. Written laws are laws which have been enacted in the constitution or in
legislation. Unwritten laws are laws which are not contained in any statutes and can be
found in case decisions. This is known as the common law or case law.

WRITTEN LAW

"Written law" refers to the laws contained in the Federal and State Constitutions, code
or statute. The written laws are much influenced by English laws as the Malaysian legal
system retains many characteristics of the English legal system. Written laws include
the Federal Constitution, State Constitutions, legislation and subsidiary legislation.
Malaysian written laws are contained in codes and statutes known as Acts,
Ordinances, and Enactments.

a) Acts

Acts are laws enacted by the Parliament. There are 4 types of Acts: the Principal Act,
the Amendment Act, the Revised Act, and the Consolidated Act.

b) Ordinances

Ordinances are laws enacted by the federal legislature between 1 April 1946 - 10
September 1959. Laws promulgated by the Yang Di-Pertuan Agong during an emergency
proclaimed under Article 150 of the Federal Constitution are also known as
ordinances. 

c) Enactments

Enactments are laws enacted by State Legislative Assemblies. However, the State
Legislative Assembly laws in Sarawak are known as ordinances.

The Parliament and State Legislatures are not supreme. They have to enact laws
subject to the provisions set out in the Federal and State Constitutions.

FEDERAL CONSTITUTION

The Federal Constitution is the supreme law of the country. It lays down the powers of
the Federal and State Governments, and enshrines the basic or fundamental rights of
the individual citizen. The rights written in the Constitution can only be changed by
two-thirds majority of the total number of the legislature members (in contrast to
normal laws which can be amended by a simple majority). The Federal Constitution
comprises articles which provide for the following (see image below):

STATE CONSTITUTIONS

Besides the Federal Constitution which applies to all States in the Federation, each
state also possesses its own constitution regulating the government of that State. This
includes matters concerning the Ruler, the Executive Council, the Legislature, the
Legislative Assembly, financial provisions, State employees,  and amendments of the
Constitution.

SUBSIDIARY LEGISLATION

The Interpretation Act 1967 defines subsidiary legislation as ‘any proclamation,

regulation, order, notification, by-law or other lawful authority and having legislative
effect’.

Subsidiary legislation is very important as legislation by Parliament and State

Legislatures is insufficient to provide the laws required to govern everyday matters. It
deals with the details which the legislature has neither the time nor the technical
knowledge to enact laws. The legislature merely lays down the basic and main laws,
leaving the details to persons or bodies to whom they delegate their legislative
powers. 

It is more flexible, can be made, amended or modified easily and more speedily

compared to ordinary legislation.

Usually the Parliament or the State Legislative Assemblies enunciates general

principles and policies relating the subject matter in a particular legislation. By giving
the power to other agencies/bodies to legislate further and fill in the details, the
legislative time of the legislature is economized.